What Does the Court Say About the Two Big Unanswered Questions? (Part I)

Marty Lederman

As I noted below, the two most important questions the Court did not answer are:

(i) Would habeas rights extend to alien detainees held in foreign locations other than GTMO (such as Bagram)?

and

(ii) What is the substantive standard for who may be indefinitely detained?

The Court was not, however, completely silent on these questions; it provided hints about how they might be resolved. In this post and the next, I'll try to identify those hints. Please note: I am not suggesting that the Court issued any holdings, or that the hints are determinative of how the Court will ultimately resolve the questions. They're merely tea leaves, albeit very carefully considered tea leaves that government officials, lower court judges, lawyers, and presidential candidates would be advised to parse carefully.

So, as for the first question: Would habeas rights extend to alien detainees held in foreign locations other than GTMO? That is to say, can the military avoid the impact of Boumediene simply by detaining or transferring all alleged alien enemy combatants to a different facility, such as at Bagram?

Short answer: No.

But that doesn't mean that habeas will be available wherever and whenever the military detains alleged combatants.

It will not be available, for instance, in the first few days or weeks of detention at a facility close to a field of battle or in "an active theater of war." The military must be given deference to utilize "reasonable screening and initial detention," even if only "under lawful and proper conditions of confinement and treatment and "for a reasonable period of time."

More broadly, the Court suggests that habeas rights will be circumscribed, perhaps even denied, if and where the government demonstrates that such proceedings would "divert the attention of military personnel from other pressing tasks," or where the government presents "credible" arguments that the proceedings would "compromise[]" a "military mission." Moreover, the Court suggests that habeas rights would be more limited or dubious where adjudicating the petition "would cause friction with the host government."

In all of these cases, Justice Kennedy emphasizes, a "relevant consideration in determining courts' role" is "whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power." Where there are no such adequate alternative protections against arbitrary governmental power, habeas rights will not be denied simply because of the foreign location: "[C]ivilian courts and the Armed Forces," after all, "have functioned along side each other at various points in our history."

Most importantly, the Court strongly implies that if, as in this case, the government chooses a foreign detention facility for the very purpose of avoiding judicial review (or perhaps even if the military retains a prisoner at a battlefield locale for the same reason), the Court will not look kindly upon such efforts. As I noted below, I believe the single most important sentence in the opinion might be this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." The political branches will not be permitted "to govern without legal constraint" or to "have the power to switch the Constitution on or off at will."

NOTE: In general, and as the above discussion should make clear, Justice Kennedy stresses that the question will in each case be determined by a "functional approach" involving multiple factors and, especially, "practical concerns," rather than by any formalist rules.

So, how does the test work. If a person is captured on the "battlefield" in Afghanistan and held by US forces at Bagram for some "reasonable period," the right probably doesn't apply. But suppose the CIA kidnaps someone in Pakistan and renders them to Afghanistan, where the person is held in Bagram? The right applies then?

I would add one more thing that the Supreme Court has "telegraphed" which is that at least a 5-4 majority is not persuaded that the existing GTMO detainee Military Commission trial structure is anything but a "kangaroo court".

My inference for this assertion comes from the following passage that's found on page 7 of the syllabus portion of the pdf:

"Petitioners identify what they see as myriad deficiencies in the CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s case, does not have the assistance of counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay."

Though this speaks explicitly to the CRST stage of the process, one logically and easily sees this also as foundational to the actual Military Commission trials.

This seems to "telegraph" to the Administration that the Military Commission rules that rely on upon things like secret testimony, hearsay, inability of the defendant to confront witnesses are not likely to pass muster in the eyes of a 5-4 Supreme Court majority.

And this doesn't even address what that same 5-4 majority thinks of things like defendant admissions as a result of the Adminstration's "enhanced interrogation techniques"

As far as I can understand it, his opinion show traces of the SOC approach and seems careful to the point of trepidation in avoiding sweeping applications outside the specific case of the Gitmo detainees.

"The Suspension Clause has full effect at Guantanamo. The Government's argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected."

The key stumbling block is the interpretation of Eisentrager, and I, like Scalia, do not find the language of the majority entirely convincing here.

I think the rejection of "formalism" is epitomized early: "A constricted reading of Eisentrager overlooks what the Court sees as a common thread uniting all these cases: The idea that extraterritoriality questions turn on objective factors and practical concerns, not formalism."

This is a strategically neat turn. It plays to the pragmatic, case by case, narrow-focused side of Roberts that we saw in Day v McDonough another habeas case decided on narrow pragmatic grounds (Scalia dissented in that one also)

Scalia hyperventilates and puffs as usual in his dissent which promises the usual apocalyptic results of the course the Court has taken.

Interestingly Scalia states:

"The gap between rationale and the rule leads me to conclude that the Court's ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world."

Yes, that is precisely the purpose of the majority language that Marty quotes:

"The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain."

The majority is mandating review, it is reserving a pathway for such review. It is the difference between building an interstate highway system and not building but holding the right of eminent domain.

I agree with Marty. The functional test has legs beyond Gitmo. That is the point of functionality. The prudential limits the Court properly notes at the end of its opinion do not amount to a bright line.

Interestingly, Justice Scalia seeks to read the opinion in just that way, practically inviting the executive to detain prisoners in a darker site where Eisentrager would reign supreme. That is wishful thinking on his part, and I hope it is his advice that goes where the sun don't shine (i.e, back to where it came from).

One odd thing in Scalia's dissent is his claim that the precedents fall short of what the Court needed for its ruling. Here he fails to engage Justice Kennedy's point: that if the precedents are sketchy, that is only because Congress had generally behaved itself in all things habeas, i.e., its measures have generally been ameliorative or understandable streamlining, whereas here it has lost its way monumentally, without unprecedent if you will. Justice Kennedy is measured in his words, but the point is telegraphed quite well, and he was the right Justice to make it.

Scalia would have been more intellectually honest -- I know, I know -- had he simply stated what he undoubtedly thinks: that the rules need to be thrown out and all power given to the political-military branches because the rules don't work anymore. But perhaps what is most risible in his dissent is his undying solicitude for Cuban sovereignty, this from a man who no doubt still remembers the Maine and whose deepest sentiments align with Noam Chomsky's observation that the US government acts as if it owned the world.

From that perspective the thrust of today's ruling is crystal clear: Very well, but in that case the Constitution will dog the government to the ends of the earth if need be.

To mad dogs' point I would add a word about Chief Justice Roberts's dissent. Its apologia for the Gitmo tribunals is astonishingly obtuse. One wonders what planet he is on. The answer: Planet Bush.

I believe the single most important sentence in the opinion might be this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." The political branches will not be permitted "to govern without legal constraint" or to "have the power to switch the Constitution on or off at will."

That is simply a head shaking, amazing statement.

Article I, Sec 8, Clause 11 states: "Congress shall have Power to...Make Rules for Captures on Land and Water."

Kennedy has now "switched off" Article I, Sec 8, Clause 11, moved this provision to Article III and replaced "Congress" with "the Supreme Court."

Article II, Sec 2, Clause 1 states: "The President shall be Commander in Chief of the Army and Navy of the United States.

Kennedy has now "switched on" a new clause to this provision, so it now reads: ""The President shall be Commander in Chief of the Army and Navy of the United States, except that the Supreme Court may define who is a Capture, whether the Capture may be detained and for how long the Capture may be detained."

The unmitigated gall of Kennedy accusing the elected branches of switching on and off the Constitution to suit their whims is something to behold.

For those of you who missed out on personally observing the New Deal, Warren and Burger Courts actually write entire provisions out of the Constitution, you are now witnessing a real live example of "living constitutionalism" in all its glory.

I see that the decision has provoked our dear Neocon "loathsome spotted reptile" Bart, into an explosion of hysteria on all the threads here and on other blogs too.

All one can really say is "welcome back to the common law, Bart".

In an earlier thread I drew attention to the fact that both Afghanistan and Iraq have UN Security Council Resolutions which provide for detention.

I referred to the situation of a person with dual British-Iraqi citizenship interned in Iraq. He applied in the UK for relief. The Court held that since the UN Security Council Resolution 1546 provided for internment, he could be detained under those provisions.

In order to understand how the point arises it is necessary to say something about the involvement of the UN Security Council in the affairs of Iraq from May 2003 onwards. For the purposes of this case it can be taken that the period between 1st May 2003 and 28th June 2004 was a period when the belligerent Coalition forces were in occupation of Iraq. As such they enjoyed all the benefits and bore all the burdens attributable to occupying powers under international humanitarian law. The Coalition Provisional Authority (“CPA”) exercised governing authority in Iraq during this period. On 28th June 2004 an Iraqi interim government assumed sovereign power, so that sovereignty was vested in an Iraqi government three months before Mr Al-Jedda’s arrest. This is important, because from 28th June 2004 onwards what was called the “Multinational Force” (“MNF”), which was largely dominated by US forces, were now performing their functions at the request of the Iraqi interim government (as the sovereign power), as opposed to being the military arm of the occupying powers.

In US Military Government v Ybabo 16 AD 439 a US Military Government Court of Appeals referred to the Duke of Wellington’s famous phrase “the will of the commander”, and said that the exercise of that will was often defined as martial law. In US v List, XI Trials of War Criminals 1230, a US Military Tribunal said at pp 1244-5:

“The status of an occupant of the territory of the enemy having being achieved, international law places the responsibility upon the commanding general of preserving order, punishing crime, and protecting lives and property within the occupied territory. His power in accomplishing these ends is as great as his responsibility. But he is definitely limited by recognised rules of international law.”

Article 43 of the Hague Regulations merely embodies the rule of customary international law that such a military commander is bound to take all the measures in his power to restore and ensure, as far as possible, public order and safety, and internment for imperative reasons of security is a tool available in his armoury for achieving that aim. What Geneva IV does is to prescribe the circumstances in which this power is to be used and exercised in relation to the people protected by that convention. It does not itself create the power.

There is no room here for any argument that human rights treaties fall into some special category. If the Security Council, acting under Chapter VII, consider that the exigencies posed by a threat to the peace must override, for the duration of the emergency, the requirements of a human rights convention (seemingly other than ius cogens, from which no derogation is possible), the UN Charter has given it power to so provide. The Security Council has primary responsibility for the maintenance of international peace and security, and one of the purposes of the United Nations, by which it is bound to act, is to take effective collective measures for the prevention and removal of threats to the peace (see para 56 above). There is no need for a member state to derogate from the obligations contained in a human rights convention by which it is bound in so far as a binding Security Council resolution overrides those obligations. If the Security Council is acting under Chapter VI, the principles of justice and international law (see para 55 above) are likely to weigh heavily with it in its search for the settlement of an international dispute by peaceful means, but we are not concerned with Chapter VI on this appeal.

It follows that Mr Greenwood was in my judgment correct when he argued that UNSCR 1546 (2004) qualified any obligations contained in human rights conventions in so far as it was in conflict with them. I use the word “qualified” deliberately. In so far as that resolution sanctioned the continued use of internment beyond the period contemplated by Geneva IV as a means of restoring peace to Iraq, the very essence of internment is inconsistent with the “due process” requirements of ECHR Article 5(1) or Article 9 of the ICCPR. But all the remaining requirements of those human rights conventions retained their vitality (in so far as they were not qualified by the Security Council resolution), and with the greater vigour because an internee’s important right to liberty was being removed without the due process that is obligatory in less exceptional times. There was nothing in the resolution, for instance, to qualify the obligation resting on the members of the MNF not to torture any internees or otherwise subject them to inhumane or degrading treatment, or to deprive them of any other Convention right (or any other international law right) relevant to the regime and conditions of internment that was not qualified by the terms of the Security Council resolution.

Moreover the Security Council has not sanctioned indefinite internment. At present it has extended the MNF’s mandate until 31st December 2006 (see para 34 above), but it would be open to it to terminate the mandate before that time, or to alter its terms, if it thought it appropriate to do so. In the meantime, if an internee continues to be detained, his case must be subjected to a review at least once every six months, and there is no power to continue his detention unless this is necessary for imperative reasons of security, which is a very demanding test. It would always of course be open to the British government to introduce an independent element into the reviewing process if it considered it appropriate to do so.

Again, I commend the full Judgment to readers who have an interest.

It is because of such cases that I suggested on that thread that the timing and location of the detention of an individual might be important because what law is applicable will depend on (i) whether arrest and took place during actual hostilities before a UN Security Council Resolution came into force, (ii) whether the arrest and detention took place before or after a UN Security Council came into force and if so, what specific provisions are made in it for the administration of justice.

I then pointed out that in none of the English cases has the Court declined jurisdiction to enquire into the legal basis of the detention of an individual. In Al-Jeddah the court conducted such an enquiry and determined (i)that he was lawfully detained under the provisions of the UN Security Council Resolution and (ii)that authority to detain or release him was vested in the military authorities.

The approach of the majority seems to leave it open to adopt a similar approach to detainees interned in Afghanistan and Iraq.

Note that the English Court of Appeal went on to say in the cited case that ius cogens human rights were non derogable leaving open the possibility of applications in that regard.

One again, unlike the UK, our federal courts are not permitted to create common law. Article III limits our courts to applying the Constitution and statutes as written.

The United States enacted a written Constitution expressly to prevent our government from imitating your government's rewriting of the fundamental law. This project of restrained government has only enjoyed limited success and this most recent setback demonstrates.

As for you Bart, it's about the rule of law, stupid. "The United States shall guarantee to every state in this union a republican form of government," Const. art. IV § 4 cl. 1; that's impossible unless the government obeys our own laws.

"The United States enacted a written Constitution expressly to prevent our government from imitating your government's rewriting of the fundamental law. This project of restrained government has only enjoyed limited success and this most recent setback demonstrates."

Rather say that your Founding Fathers (BTW common lawyers) wrote a Constitution which expressly ensured - as we now see effectively - that an adaptable common-law remedy should not be abrogated by executive fiat.

Sorry if that upsets your visions of becoming Secretary of State for Torture under a US Duce - but that's what the Constitution was put in place to safeguard.

And remember - when SCOTUS speaks it is not legislating but declaring the law as it always has been when properly understood.

Here is a summary of my posts over at opiniojuris.org and on the The International Law Discussion Space listserv TILDS@yahoogroups.com.

Some thoughts on Boumedienne and MunafBy Benjamin G. Davis

I. Boumedienne

A. Boumedienne majority (Kennedy, Stevens, Ginsburg, Souter, Breyer)

The willingness of the Majority to get past the forms that so hung up the lawyers who tried to put in place these horrendous procedures points out the weakness of the formalist analyst of those lawyers. Their analysis "knows the price of everything but the value of nothing". The majority understands just what is at stake.

The folks who thought 1) lets put people in Gitmo 2) lets put together a kangaroo court system under the president's authority, 3) let's put one through under the Congressional authority because of Hamdan etc - are rebuked.

The quote I love is at page 56

(“Liberty may be violated either by arbitrary imprisonment without law or the appearance of law, or by a lawful magistrate for an unlawful reason”). (page 56)

Rejecting the dejure sovereignty formalism and accepting a defacto sovereignty analysis for habeas corpus review is vital in a messy world in a much messier war setting. That means that the kind of hiding people in black sites and other things is more likely to be reached than if that had not occurred. The shell games of extraordinary renditions to Mauritania, Bagram, Poland, Eastern Europe, American ships etc by the US government is now open on pragmatic grounds to potential habeas corpus review. That pragmatism permits the judicial branch to do its role in our system as a coequal branch of government to check the Executive and the Legislative when they cede to panic and improvisation as they have done in the detainee situations over the past six to seven years.

This is what happens when a government throws out 60 years of experience using awful analysis by clever by half lawyers - they get slapped down each time because their analyses simply do not pass a common sense standard.

That the court goes beyond its habeas corpus decision to look on the adequacy of the kangaroo processes at Gitmo is extraordinary and demonstrates (to me at least) the Court's understanding that something very fundamental is at stake in this case about what the United States is about.

When a state holds someone incognito (and the court knows about the torture though it does not see the need to get there - there is a warning in the words of limitation on issues of confinement and treatment) like this, a reasonable court will react like this. When you disappear people, a reasonable court will react like this.

What the Yoo's, Goldsmith's, Addington's, Bradbury's, Delahunty's, Bybee's, General Miller's, National Security Principals, Mukasey's, Gang of Eight types, Gonzales', the Lindsay Grahams and the compromising McCain's and Warner's, the prognosticators in favor of a National Security Court, and all the rest of that ilk need to keep in mind is the end of Kennedy's majority opinion at pages 68-70

"In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936). Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are free dom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation- of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. Cf. Hamdan, 548 U. S., at 636 (BREYER, J., concurring) (“[J]udicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine— through democratic means—how best to do so”). It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined. We hold that peti tioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law. The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion."

This as much as saying what Jackson said in 1945.

“The ultimate principle is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict. I am not arguing against bringing those accused of war-crimes to trial. I am pointing out hazards that attend such use of the judicial process - risk on the one hand that the decision that most of the world thinks should be made may not be justified as a judicial finding, even if perfectly justified as a political policy; and the alternative risk of damage to the future credit of judicial proceedings by manipulations of trial personnel or procedure temporarily to invest with judicial character what is in fact a political decision.”

Grabbing people willy-nilly, torturing them, and creating ersatz processes to cover all that up and convict - to commit state murder or indefinite incarceration - that is the province of the Soviet law we fought a Cold War to combat. That is not the province of an Anglo-Saxon tradition which all Americans should share.

With this decision, the court avoids a Korematsu moment and seeks to have the United States reconnect with what is so basic in us.

Refluat Stercus!

On sovereignty, I think the sense that the majority is taking is a recognition that dejure sovereignty is not enough and that defacto sovereignty should be a permitted basis for the Constitution running outside the United States. The court recognizes the prudential concerns, but the essence seems to be functional - as the Court states in the majority. Put another way, if the Executive is going to be running around the world doing things then the Constitution may permit the Court as a coequal branch to allow challenges to those actions. The Court has to take into account the complexities that surround such a habeas corpus analysis, but in many ways what the court is doing is recognizing that to the extent the Executive and Legislative are going to take on an unending internationalized role, then the Court has to accept a role in being a place where policing of those actions occurs.

I would suspect the willingness of the Court to do this comes with its increasing frustration with the grabs for power of the Executive in this war. The persnickety analysis of lawyers who do not appreciate the grandeur of the law and the rule of law I suspect is part of the frustration. The willingness of the majority to step away from the incomplete 1789 habeas records, to look at what happened in other places post 1789, and to synthesize from these principles the way it is going to operate now is hugely significant.

I was very much struck by how Somersett's case about an alien slave, and Brown even came in, also the disdain for Dred Scott and the interpretation of the Insular cases (Pedro Malavet has some interesting thoughts on those cases).

It is about pragmatism to avoid the Executive to be able to abuse its power. It is similar to the reason the Geneva Conventions are written in general terms, so that persons can not torture people by saying "that method was not on the list". The court gets the essence of the need in a democratic society for the Executive and Legislative to confront some type of check. Why? Because for seven years the Executive and Legislative have demonstrated that they are unwilling to act in a manner consistent with the good faith that is the predicate for the kind of judicial deference those in the minority would prefer.

B. Souter's concurrence points out the essence of what is going on here

“After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation. See ante, at 69. “

It is simply a rejection of the kind of mechanistic deference of Scalia and Roberts to the Executive. It is obvious that the Executive can only be entitled to such deference if its actions are consistent with good faith respect for law. The ersatz processes based on ersatz legal analysis have come home to roost!

C. Roberts dissent – joined by Scalia, Alito and Thomas

Roberts does get it to some extent when he writes.

"One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."

The Executive and Legislature having made such a hash of federal policy regarding enemy combatants over the past seven years, the Judiciary is forced to step in. And this hash happened because the Executive first stepped away from 60 years of US experience and then after its panic and improvisation, got the Legislature to go along.

That's the rub the minority is feeling and it is good, because we have had enough of improvisation in this arena that has so hurt the United States standing in the world and United States security.

Two things that are a problem with Roberts dissent.

At 10-11

"The majority insists that even if “the CSRTs satisf[ied] due process standards,” full habeas review would still be necessary, because habeas is a collateral remedy available even to prisoners “detained pursuant to the most rigorous proceedings imaginable.” Ante, at 55, 56. This comment makes sense only if the CSRTs are incorrectly viewed as a method used by the Executive for determining the prisoners’ status, and not as themselves part of the collateral review to test the validity of that determination. See Gusik, 340 U. S., at 132. The majority can deprecate the importance of the CSRTs only by treating them as something they are not. The use of a military tribunal such as the CSRTs to review the aliens’ detention should be familiar to this Court in light of the Hamdi plurality, which said that the due process rights enjoyed by American citizens detained as enemy combatants could be vindicated “by an appropriately authorized and properly constituted military tribunal.” 542 U. S., at 538. The DTA represents Congress’ considered attempt to provide the accused alien combatants detained at Guantanamo a constitutionally adequate opportunity to contest their detentions before just such a tribunal."

At 13,

"If nothing else, it is plain from the design of the DTA that Congress, the President, and this Nation’s military leaders have made a good-faith effort to follow our precedent."

I think the majority opinion recognizes the possibility of military tribunals. The history of them was described at length in Hamdan as having been used 1) in occupied lands and 2) when the courts (i.e. South in the Civil War) were not available. The Quirin precedent I suspect is very troubling for the Court to consider that a reasonable procedure under today's standards.

What the majority is doing is basically not acknowledging that the CSRT are "military tribunals." In that sense, the majority is seeing them as emanations from the Executive that are unfit for the label of military tribunal. The majority is looking at the form and substance of the process and type of review put in place by the DTA and is simply rejecting it. This again is consistent with Jackson's comment in 1945 about the need to respect judicial forms. Roberts is a majoritarian heat of the moment deference type it seems to me. Just because a bad law is put in place by Congress does not mean that the Court is to roll over. The Court can see what the DTA was really about as I hope it also sees with the MCA and can decide these do not fit with the forms of judicial process required under our Constitution.

It is this weakness in the understanding of Roberts of what the Constitutional role of the Court is as a coequal branch of government that will be with the Court for years to come. It is ultimately a form of timidity by the dissenters in the face of Executive power that is really quite disappointing. It is an approach that is uneasy with recognizing rights of the social outcast preferring the acceptance and bonhomie of the socially acceptable prejudices of the moment.

Roberts gets it wrong again later when he writes.

“Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges. “

The problem that Roberts has is the problem of the formalist. He is walking through the CSRT procedures and attempting to show that the CSRT is an “oh so adequate” set of procedures.

He also appeals to our jingoism by attempting to suggest that the process here given to a "noncitizen" will be greater than that for a "citizen". (I can't wait to see the Congressional types puffing that up in the anti-foreigner environment in which we live.)

Roberts legal weakness is simply in his being so enamored of the formalism of the words of the DTA. It is untidy for him for the Court to have thrown such a spanner in this well oiled process of CSRT and Article III review. But, the important thing the majority understands is that this procedure was not created to make a search for the truth. Rather, the procedure was put in place to make a search for the "truthiness" of the combatant status argument of the government in holding these people and treating them this way.

Roberts makes much of things that go on with regard to remand etc in the courts, but he fails to also note that the remanding to be done in this setting is to CSRT. Similarly with the possibility of release he is basically saying, trust in the good faith of all involved. I could trust in a court below, but I can not trust in the "truthiness" of a new CSRT court below.

The point here is that the majority shows skepticism to the pious formal words of the statute and looks at whether substantive due process is possible in the two-step system of the DTA.

I think the majority simply understands that the objective of the two-step system of the DTA is to assure people are held (truthiness) whether or not in fact they should be held (truth). And that is not good enough for the majority.

Roberts is willing to go along with the elaborate charade of the DTA rules showing a timidity in the face of a most dubious statute put in place in time of war. That may just be a sign of his immaturity, his lack of experience of war, or some flaw in his learning in that he never had to suffer on his way up. Be that as it may, he misses the essence of what was going on at Runnymede.

D. On Scalia's dissent, the essence that he does understand is:

"The gap between rationale and rule leads me to conclude that the Court’s ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world. The “functional” test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide path for the Court to traverse in the years to come."

I think that Scalia is absolutely right that the threat of that happening is present in the majority opinon. However, I read the majority as saying the reason for that threat is because of the profound departures that the administration has taken in the present war/armed conflict/pick your word in the manner in which the US has treated detainees.

The majority has looked at habeas and seen that it can be applied practically at Gitmo to these non-citizens being held. Scalia himself recognizes that habeas has been found to apply to US citizens abroad in a manner that is a departure from the English practice. Scalia just does not like that flexibility being applied to these non-citizens abroad. The majority does.

Scalia waving of the flag of the 400 000 POW's held in WWII misses the point that these persons had POW status as opposed to these enemy combatants who are being denied (in error) any status under the Geneva Conventions.

Second, in Johnson v Eisentrager where these persons were held in Landsberg Prison, after a conviction by a properly constituted military commission in China, there is no hint at any step of the process of the kind of horrendous detainee treatment that permeates any question concerning detainee treatment in the War on Terror. (In fact, looking at Quirin (also), the key thing there is that there was no hint of horrendous detainee treatment that permeates the detainee treatment in the War on Terror.) If at Landsberg prison it was reported that those detainees were being subject to the kind of torture that we regularly hear about with regard to Gitmo and other places in the war on terror, I am not as sanguine as Scalia in thinking that the US court would not have entertained those cases.

Third, the fact that some detainees who have been released have joined for the first time or rejoined the enemy leaves to the side the specific issue of on what basis are we holding each of these detainees. I understand that hundreds of detainees (500 detainees) have been released. The number of 30 given by Scalia as having joined or rejoined the battle tells us nothing.

We should remember in the Civil War there were southern soldiers paroled on their promise not to take up arms again who went back and fought. When it got too bad in terms of those taking up arms again in dishonor, parole was ended (that led to Andersonville - more on that someday). But the ending of parole meant they would be held to the end of hostilities. Similarly, if we are having problems with numbers released and we consider they rejoined the battle (so should not have been released), the answer is in holding them until the end of hostilities after review in proceedings that are reasonable - not ersatz processes of dubious fairness. We did this in WWII and, where there were weaknesses, attempted to improve on those processes.

This is where the dissents miss the point, by there willingness to defer to an Executive and Legislature that was bent on lawlessness and covering lawlessness, they created the conditions for persons from a tradition that places a floor under human rights in war to react. That is what I think is the essence of what is going on here through the majority mucking up the carefully structured - conviction machine that was to provide ersatz process.

What will be interesting now is to see in this election year whether a great deal of heat will be thrown up about being "soft on terrorism" as the right attempts to get a new law like a "national security court" passed in Congress before the election. You can see this is going to be set up. The left will probably cave because they do not want to be seen as "soft on terror".

I only hope that there are persons in the left and the right who come together to stand with the older traditions that were thrown out during the past seven years to put in place processes of review that are meaningful for enemy combatants.

At the heart, the effort to put these people in places without law is made to fail by this decision. That is the fundamental error of those slick lawyers who tried to pull that off. And it has done an enormous disservice to our fighting persons protecting us and to the traditions of warrior culture of the United States. There is a term for these types in the military - REMF (Rear Echelon Mo Fo's). They really screwed it up so that a majority of the Supreme Court feels the need to step in like this. Shame on those boneheads.

E. Munaf – unanimous with Souter concurrence

I would also suggest that this case be read in conjunction with Munaf. While Munaf is a unanimous opinion, the Souter concurrence points out precisely what is in the mind of many members of the Court, to wit:

“The Court accordingly reserves judgment on an “extreme case in which the Executive has determined that a detainee [in United States custody] is likely to be tortured but decides to transfer him anyway.” Ante, at 24–25. I would add that nothing in today’s opinion should be read as foreclosing relief for a citizen of the United States who resists transfer, say, from the American military to a foreign government for prosecution in a case of that sort, and I would extend the caveat to a case in which the probability of torture is well documented, even if the Executive fails to acknowledge it. Although the Court rightly points out that any likelihood of extreme mistreatment at the receiving government’s hands is a proper matter for the political branches to consider, see ante, at 23–24, if the political branches did favor transfer it would be in order to ask whether substantive due process bars the Government from consigning its own people to torture. And although the Court points out that habeas is aimed at securing release, not protective detention, see ante, at 16, habeas would not be the only avenue open to an objecting prisoner; “where federally protected rights [are threatened], it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief,” Bell v. Hood, 327 U. S. 678, 684 (1946). “

The case at hand is with regard to American citizens and so the concurrence refers only to that case. However, what is left sub silentio is the idea of a non-citizen being transferred by the United States and whether a habeas attack would reach that. A second case is the case of Americans giving someone to a second country who then gives the person on to a third country (or whatever length of daisy chain is involved).

What is excellent in Munaf is that Roberts does reject the formalist argument about the MNF not being US custody and looks at the substance of what is going on to recognize that the court would have habeas authority here. Secondly, it is significant that Hirota is limited significantly in this setting - something that was not a foretold conclusion - and by a unanimous court.

However, what is disturbing in the unanimous opinion is the deference to the political branches on the evaluation of the "torture-likelihood" of the foreign state to which someone is transferred. Roberts and those who do not join Souter's concurrence are clearly trying to leave open space to decide that they should defer on extraordinary renditions cases to the Executive's decision. Once again, the argument will be that deference should be given by the Roberts, Alito, Scalia and Thomas types while one would hope that a majority would look more to the substance of what was going on like they did in Boumedienne. I think a look at the substance would recognize situations where the Executive of our country was in cahoots with the Executive of another country to deny torture was happening and to in fact send someone to be tortured (liked Arar being sent from Kennedy airport with a list of questions to Syria). The Court may resist going into that foreign relations space, but if the Convention Against Torture and the Geneva Conventions are going to have meaning then I hope it will not punt on the political question on this too.

I think the voluntarily going to Iraq is a big thing here - they took the chance to go to the dance. The thing that is left is the involuntary situation and that is going to be more thorny. Of course the horrendous thing is that the amicus cites US reports but the representatives of the US do not - tells us the state of life over at State I guess.

On the "transfer" idea, I hope folks saw Bellinger today in Congress defending the extraordinary renditions - distinguishing Arar to Syria as not an extraordinary rendition but as an immigration matter. Way to play to prejudices John - makes me sick. You can see a summary over at Jurist.

What I think is going on here is that non-citizens rights are being brought closer to those traditionally seen only for citizens because the kind of distinction citizen/non-citizen that was a hallmark in the pre-Universal Declaration of Human Rights world in the 1940's are less possible when state action has such dramatic effect on so many kinds of people.

The national rights and human rights are being overlaid to state the obvious in a way that people of the 1940's generation like Jackson or before would have difficulty understanding intuitively.

I think many Americans today also have difficulty conceiving of the human rights strata as they are seen as inuring to the benefit of people present in a foreign land.

Americans are not educated in the fact that those human rights inure to their benefit and to those of non-citizens in the United States. Our Constitutional focus seems to blind many of us to that strata of rule of law protection.

It is an ignorance which many of our political leaders attempt to make us think is a virtue.

F. Who wins?

I think our courts need to comprehend that people around the world will respond to fair decisions by our courts, just like they respond negatively to torture being done by our government. People respond to our conduct and if we want to win their hearts and minds we have to do those things that are conduct that they like - while at the same time protecting ourselves and our allies from those who wish us ill will. That is the terrible task that these persons in government have in this world, but that's the job they want to take.

If we are going to be a city on the hill, we can not act like we are in some small southern town in the south back in 1951 where the effort is about "getting the (n* word)" as opposed to about being consistent with judicial forms.

That seems to be something that these good ole boys in our government have forgotten or wish not to remember just because these are foreigners.

Who wins? The United States of America wins by the Judiciary requiring true judicial forms and protecting people from the kind of arbitrary detention that the "enemy combatant" definition, the attempt to suspend the Geneva Conventions, the reinterpretation of torture, the extraordinary renditions, and all the rest of the panic and improvisation that has gone on the past six to seven years were trying to put in place.

I also insist that those proponents of the "national security court" pause before they start touting here this latest doodad in the continuation of the panic and improvisation. It is time for the tried and true in this war not more improvisation.

So, as for the first question: Would habeas rights extend to alien detainees held in foreign locations other than GTMO? That is to say, can the military avoid the impact of Boumediene simply by detaining or transferring all alleged alien enemy combatants to a different facility, such as at Bagram?

Short answer: No.

Marty, I suggest you are reading more into the opinion than is actually there.

Kennedy took extraordinary pains to limit his decision to irregular POWs located in prisons where the US had de facto sovereignty through total control of the facility. A future Court could easily distinguish this opinion under different circumstances.

As I have pointed out in past posts, the applicable common law holding that the writ did not extend to foreign POWs were the British Schiever and Three Spanish Sailors cases. Acknowledging that these cases can stand for the proposition that common law courts declined to provide review for POWs, Kennedy then limited this precedent to declared wars between nation states. (p. 16-17). While this interpretation is not warranted by the King's Bench's categorical statements that the writ did not extend to POWs period, it does excuse future US courts from applying Boumediene to wars with other nation states. This discussion narrows the scope of Kennedy's new constitutional right to irregular enemy combatants.

Kennedy's attempt to distinguish Eisentrager substantially limits the geographic scope of his opinion to territories where the US enjoys absolute and indefinite control like Gitmo. (p.32-40). Contrary to my initial impression, Kennedy did not reverse Eisentrager and instead strongly implied that the writ still does not extend to occupied countries at facilities where control is at least nominally shared with allies. (p. 38-40). To avoid any confusion, Kennedy concluded his analysis by expressly limiting his decision to Gitmo (bottom of p.41). Thus, it appears that Kennedy desired to limit his opinion to Gitmo and not extend it to Iraq or Afghanistan.

I would suggest that the military can easily sidestep Boumediene by keeping their POWs in occupied countries where the war is being conducted and at least nominally share custody of the POWs with coalition members or the local government, if one exists.

Finally, the Court's opinions in Munaf v. Secretary of the Army and Secretary of the Army v. Omar holding that, while the petitioners have access to habeas corpus, the reviewing US courts cannot order the Army not to release the petitioners into Iraqi custody, suggest that the military could indeed release the Gitmo detainees back to the country of their capture or probably to their country of citizenship.

The Bush Administration should seriously consider short circuiting this entire process by releasing all detainees who will not be tried as war criminals back to the country of their capture or to their country of citizenship.

My inference for this assertion comes from the following passage that's found on page 7 of the syllabus portion of the pdf:

"Petitioners identify what they see as myriad deficiencies in the CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s case, does not have the assistance of counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay."

Though this speaks explicitly to the CRST stage of the process, one logically and easily sees this also as foundational to the actual Military Commission trials.

This seems to "telegraph" to the Administration that the Military Commission rules that rely on upon things like secret testimony, hearsay, inability of the defendant to confront witnesses are not likely to pass muster in the eyes of a 5-4 Supreme Court majority.

Indeed. In particular, the court may well look even farther askance at such procedural "short cuts" in the context of criminal prosecutions, some likely to be seeking the death sentence. While some departure from the rules of "fair trials" might be excused for "combatant status" determinations, and the executive might be afforded some leeway there in deference to the usual arguments concerning executive prerogatives in military affairs, once the legal conflict "leaves the field of battle" and moves into the criminal domain, it becomes harder for any fair-minded justices to let such precedural laxity slip. Agreed, the MCA procedures do allow a bit more "due process rights" than do the CSRT ones, but not by much, and certain far different from those afforded by an Articlee III court....

One again, unlike the UK, our federal courts are not permitted to create common law. Article III limits our courts to applying the Constitution and statutes as written.

Not quote true. Federal courts acting in diversity may "create common law" in the same manner as any courts ruling on common law matters do so. Erie v. Tompkins is really a "choice of law" case. There, the court simply ruled that there is no independent federal common law, at least when there is state common law that can be applied. In the particular instance of issues of first impression, though, the federal courts can make an "Erie guess" as to what the state courts would have done (if asked) under controlling state law.

This entire problem arises because of the particular system of dual jurisdiction we have present in the United States, but is hardly a derogation of the idea of "common law" as such. In fact, common law is alive and well in pretyt much every state.

The United States enacted a written Constitution expressly to prevent our government from imitating your government's rewriting of the fundamental law.

Oh, nonsense. The Constitution says nothing about eliminating common law. The Constitutional 'infirmity' of Erie v. Tompkins (if it was in fact such), was a Tenth Amendment one of supplanting the common law of the state.

And noteworthy (or not) in its absence is any cited support for "Bart"'s assertion as to why the Constitution did what he says it did.

Arne: A friendly amendment/mild correction re Erie. Bart's flip assertion that federal courts are barred from engaging in common-law development is doubtless a perversion of the Erie court's holding. What Erie actually held is that there is "no general federal common law" to which federal courts can turn when deciding state-law questions in diversity cases (or, for that matter in other cases where a federal court has jurisdiction to decide a question for which state law supplies the rule of decision, such as under the supplemental jurisdiction statute). The modifier "general" is critical, as is the context. What Brandeis was saying in Erie was that the federal system -- composed as it is of courts with limited jurisdiction -- does not have an all-purpose corpus of common law on which to draw as an independent basis for deciding these state-law questions. Rather, federal courts, as you put it, are called upon to guess at what the relevant state's highest court would do.

What Erie does not mean is that the federal courts are barred from common-law development when exercising federal question jurisdiction. The suggestion that they are barred is really quite silly. Examples abound, not only in constitutional law but under many, many federal statutes. In Textile Workers v. Lincoln Mills, the Supreme Court famously understood Section 301 of the Labor Managemetn Relations Act to empower the federal courts to create a federal common law of labor arbitration, whcih they have of course done. The Court made a similar move with respect to the Federal Arbitration Act. The courts routinely fill all sorts fofgaps in federal statutes by engaging in common law development, as when a federal statute fails to include a limitations period, or an effective date, or a clear indication that the statute was intended to apply retoractively. I could go on -- and risk outnumbering my readership -- but the examples above should more than suffice to demonstrate that Bart has not the slightest idea of what he is talking about.

As for you Bart, it's about the rule of law, stupid. "The United States shall guarantee to every state in this union a republican form of government," Const. art. IV § 4 cl. 1; that's impossible unless the government obeys our own laws.

:::sigh:::

1) A republican form of government is run by elected representatives of the People, not by unelected courts.

2) The laws at issue here are the Article I provision empowering Congress to set rules for captures, the Article II provision making the President the sole CiC and the applicable court precedent in Schiever, Three Spanish Sailors, Quirin and Eisentrager. The only branch of government ignoring these laws was the Boumediene majority.

3) I do agree with you on one account. It is impossible to run a republican form of government when the Court ignores the law and arrogates the powers of the elected branches.

There is de jure common law and de facto common law. The Constitution and the US Code are not based on common law and may not be modified by common law. However, under the doctrine of judicial review where the courts get the final say on what the law is, the courts have arrogated a power to rewrite these laws into a de facto common law.

Bart: Leaving aside the question begged by your response -- i.e., whether the power to develop federal constitutional and statutory law in the common-law mold via the power of judicial review was part of the original design or simply the creature of the early Supreme Court's "arrogation" of power -- the fact of the matter is that the system we have, and have had form more than two centuries, is an Anglo-American common-law system, not a Franco-American civil law system (and I will also leave aside debates regarding whether civil-law systems really avoid judicial development of the law). So what you seem to be pushing is an extremely selective argument that because the Supreme Court has issued a constitutional decision with which you disagree, that decision is defective because we really do have -- all of a sudden -- a Franco-American civil-law system, not a common-law system. The implications of such an argument -- were it viable -- would of course be staggering if you actually had an interest in applying the principle generally. You are of course entitled to your philosophical opinion as to whether the courts should have assumed the power of judicial review, but to posit that judicial review no longer exists or is no longer legitimate because you don't like what the Court did in a particular case is nothing more than non-reality-based special pleading.

Incidentally, the Captures Clause in no way operates as an ace of trump, for there is at least one competing principle, i.e., the Suspension Clause. Granting Congress the authority to regulate captures does not exempt Congress from the stern injunction of the Suspension Clause any more than Congress's power to regulate interstate commerce gets it out from under the First Amendment or the Fifth Amendment. To return to the main point, if we assume judicial review -- without which we don't have much of a separation-of-powers-based system -- then there's no real way to get around having the courts resolve apparent tensions within the Constitution. And to simply argue that the Court's decision is illegitimate because it is based on a centuries-old "arrogation" of power -- an "arrogation," if "arrogation it be, in which the political branches have acquiesced over two centuries -- is to be willfully blind to empirical rality.

If the mere presence of a written constitution and a body of stautory law works like kryptonite to repel the common law (as you suggest), then how is it that the several statues, each of which has a written constitution and a body of statutory law, somehow manage to have common-law devlopment? Your argument, if taken to its logical conclusion (and I use the term "logical" loosely here), would, inter alia, wipe out much of the basic tort law of this country. I thus cannot help but wonder what your feelings aobut the legitmacy of judge-made law would be if you found yourself injured in an auto collision that was the fault of another driver.

Actually, that is what I was trying to say: That for diversity cases, Erie say that if there is state common law that applies, any independent "federal common law" must yield. More specifically, the Tenth Amendment (in one view) requires that states be allowed to set, develop, and use their own laws, if it is not subject matter to whom the federal courts have been given jurisdiction by dint of being a power within the federal government to set laws.

Of course, for matters of federal subject matter jurisdiction, the "common law", the corpus of cases which develop and refine the law (and round out the statutory law) on such federal questions, stands, and the federal court system is their own authority on such matters.

I ignored the question of federal subject matter common law, as Erie didn't involve that, and instead pointed out that "Bart" was even wrong on Erie. "Bart" is of the Cliff's Notes School of Legal Scholarship: If it says in that bolded single sentence in the slim yellow book: "Erie says no common law", it must be so.....

That's just more BS -- the courts are as much a part of the government as the other two branches, and their appointment or removal from the bench is as much a function of the democratic process as the electoral college is or a vote in Congress is. The role of the executive branch is to faithfully execute the laws; the role of courts is to decide cases. It's hard to imagine why we would need courts at all under your fraudulent nonsense.

1) Under our legal system, statute trumps common law and the Constitution trumps both. The US adopted a written Constitution to avoid the vagaries of a British style common law "constitution" which could be changed at will by the courts.

2) Assuming arguendo that there is a constitutional basis for extending habeas review to foreign POWs for the first time in the several hundred year history of the writ, the Captures Clause informs the scope of such a review.

Generally, habeas review simply verifies that the government followed the law in detaining the petitioner. Only in rare cases does a habeas review extend into the substance of the law itself.

Perhaps the most disturbing part of the Boumediene majority opinion is where the Court not only extends standard habeas corpus review over whether the military followed the rules set forth by Congress and the Executive to determine the status of captures, but also assumes the substantive power to set those rules.

The problem here is that the Constitution expressly allocated the powers to set rules for Captures to Congress and generally to the President as CiC.

Article I, Sec 8, Clause 11 states: "Congress shall have Power to...Make Rules for Captures on Land and Water."

Article II, Sec 2, Clause 1 states: "The President shall be Commander in Chief of the Army and Navy of the United States.

Article III makes no reference to Court wartime powers.

The Constitution obviously did not consider setting rules of captures to be a matter of judicial due process for the Courts.

Thus, even if habeas corpus can be rationally thought to extend to foreign POWs for the first time in history, that review under the Constitution must be limited to determining the procedural issue of whether the military is following the rules set forth by the elected branches. Boumediene's extension of habeas review to setting rule for captures is in facial violation of Articles I and II.

"The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority[...]", Const. art. III cl. 1.

Some points...

* "Law and equity" means precisely the Common Law and Chancery.

* There is no part of warfare that falls outside the bounds the "Constitution, the Laws of the United States, and Treaties made []under their Authority."

* It is a fundamental breach of military discipline to either issue or obey an unlawful order, and it is a fundamental breach of military duty to act on an order which you do not understand. War cannot and does not serve to justify doing anything you please without regard for the law.

* The Congress and President make the laws, the President and Senate make the treaties, and the Courts interpret the statutes, treaties, and precedents when there's a dispute.

* The Congress and President make the laws, the President and Senate make the treaties, and the Courts interpret the statutes, treaties, and precedents when there's a dispute.

Precisely.

This, of course, begs the question upon what authority do the Boumediene Five ignore Articles I and II of the Constitution and the rules for status hearings established by the President and Congress pursuant to their express constitutional powers to make their own law?

Indeed, it is interesting to observe in today's post above Marty cautioning Ben against allowing the Congress to set rules for captures pursuant to Article I because they have a better chance getting the rules they want when the courts make the law!

Gosh, another confused farrago of non sequitur, falsehoods, and irrelevancies. Where to start? I’ll pick this choice morsel:

“Generally, habeas review simply verifies that the government followed the law in detaining the petitioner. Only in rare cases does a habeas review extend into the substance of the law itself.”

As an initial, purely theoretical, matter, even accepting your rather reductive description of habeas authority, how does one get to “verif[ying] that the government followed the law” without figuring out the anterior question of what exactly is “the substance of the law itself”? And guess what, sometimes that requires some analysis beyond simply looking up a statute, as if one were consulting a tax table. Otherwise, why have judges at all, vested with “the Judicial power of the United States”?

Now, back once again to empirical reality. It is manifestly not the case that habeas review “[o]nly in rare cases” can “extend into the substance of the law itself,” assuming that by that you mean something other than the equivalent of consulting a tax table. Let’s take just a very recent example, INS v. St. Cyr. That’s a habeas case in which the Court did two things: One, it examined a statute that, the government contended, eliminated access to habeas by aliens who had been convicted of certain crimes. Employing common-law rules of interpretation—including the canon of constitutional avoidance and a corollary “clear statement” principle whenever it is contended that Congress has eliminated habeas—to conclude that Congress had not, in fact cut off access to habeas (and likely would have violated the suspension clause if it did). Second, the Court reviewed the underlying substantive claim, which involved the question whether another statutory provision that cut off a form of administrative relief would apply retroactively to deprive the Respondent of that form of relief. The Court concluded that the statute was not intended to apply retroactively, using, again, common-law rules that it had developed to deal with the question of whether a statute has retroactive effect in the absence of a clear indication from Congress as to its intentions.

St. Cyr helpfully illustrates a number of points. I’ll mention two. One, it puts paid to the notion that courts only “rarely” examine substantive legal claims on habeas. That is simply not true. Happens all the time. The number of habeas petitions raising the interpretive question at issue in St. Cyr, for instance, was staggering. (Were it otherwise, the Court might not have granted cert.) Two, St. Cyr nicely demonstrates the silliness of Bart’s notion that, when a court is confronted with an issue of law, all you have to do is recite the relevant constitutional provision, or failing that statute, or failing that common law rule, and presto, you have an answer. All in a neat, orderly, airtight, and self-evident hierarchy. Our legal system just doesn’t work like that. There is an abundance of common-law rules involved in getting at the question that you assume away—what the governing rule is.

The St Cyr case examined the statute denying habeas corpus, not the underlying law which was the basis for the detention.

I am not discussing Kennedy's analysis of the MCA. Rather, I am discussing Kennedy's holding that the habeas review may review and presumably reverse the underlying combatant status determination rules under which the enemy is being held.

That's no mystery Bart: the majority doesn't share your fraudulent "understanding" of the Constitution, etc. It's the folks on your side of this debate who are ignoring the law and the Constitution, and you're doing it for precisely the reason that you want to commit CRIMES we once executed Nazis for committing.

For a moment let's lift our heads out of the books and put aside for a time Eisentrager, St Cyr, the Suspension Clause, captures, and all the rest.

You were proud of your service in Gulf I.

Wasn't the fact that your Army was the representative of a country that champions liberty and such things as the Great Writ, a factor, however unconscious, in your pride to be a soldier of this country?

When I was in the service almost forty years ago, I was proud also, but not because I represented a country that had McDonalds or Baseball or little steepled churches on country roads.

I thought of our freedoms and the tradition of liberty and rights going back in lineal fashion to the Magna Carta. I saw us as opposing an enemy to whom that tradition was nothing. This may sound histrionic, but that really was my stance in those days.

You could say the red-state schools I had attended brainwashed me well.

So the army I was part of were the citizen-soldiers of a republic based on justice, equal protection under the laws, fairness, and also-somewhere in there-the Great Writ.

I think you would submerge these things and drown them in a sea of expediency, the better to get at our enemies.

Its not the way to go. We lose our selves, our civic pride, and we become amoral, more a Team, than a nation, something whose only purpose is to contest with others and win by all possible means.

Boumediene is a great victory for the America I grew up in, in the late forties and early fifties. In that sense, it is an act of restoration --to an earlier civic faith in values trumping expediency, in law trumping force, in human rights and dignity trumping nationalism.

I would suggest that our Army was and is about defeating or deterring our nation's enemies to protect our Republic and its People.

I simply cannot celebrate a decision which grants aid and comfort to the enemy so that he may better wage lawfare to avoid capture and which undermines the Republic by having our unelected courts take power from the People's elected representatives to grant it to themselves as an self appointed groups of CiCs.

I understand that you disagree with the policy of our elected officials, but that is what elections are for, not court cases.

I suppose we have always given aid and comfort to our enemies, be they the Central Powers, the Axis, the NVA, etc, by the fact we were less ruthless than they, that we did not torture our captives, that we accepted surrendors--rather than simply machine gun them.

We have always labored at such a disadvantage and we have always prevailed. Over one ruthless enemy after another.

You might say we are blessed by Providence...how else could we be so mighty?

Boumediene is not about torture or summary executions. Rather, Boumediene is about who will set the rules for captures - our elected branches or the courts.

You have been harkening to some golden age of treatment of POWs which somehow disappeared during this current war. In fact, you may want to do some reading about how we really treated unlawful enemy combatants from irregular militaries in the past.

Until the GCs, it was perfectly acceptable to execute them on the battlefield. Abraham Lincoln's order to the troops in 1863 permitted the Union Army to execute the various Confrederate guerillas robbing, raping and massacring their way through the war.

Contrast that largely undiscussed history with Chief Justice Robert's lengthy dissent discussing the unprecedented procedural rights Congress has granted this latest group of captured terrorists.

If due process for terrorists is your idea of a golden age, then I would submit that we are in the middle of one.

If I were the enemy, here is what I would be instructing my terrorist fighters.

When you attack the Americans, mix with civilians to create reasonable doubt as to who was actually fighting.

When it appear that you might be captured, throw your weapons away towards others in the crowd of civilians behind which you are hiding.

If the Americans ask who the weapons belongs to, identify a civilian.

If the Americans capture you with a weapon, claim it was planted.

Throughout the Americans interrogation, claim that you have been tortured and demand a lawyer. Do not say anything.

If you are compelled to speak with the Americans, use your cover story that you are a tourist, aid worker, religious pilgrim, etc.

When the Americans assign you an attorney, demand a habeas corpus hearing and claim that you have been tortured and made to incriminate yourself.

If an immediate habeas corpus hearing is not provided, start a hunger strike or attempt suicide. Try to communicate with other Mujhadin in the prison and coordinate the hunger strike or suicides.

When you are granted a habeas corpus hearing, claim that you have been tortured and made to incriminate yourself, deny everything presented by the prosecutor and claim that the government is hiding evidence which will exonerate you.

If you are released, report to the safe house at ________ to rejoin the Jihad.

The other habeas ruling (unanimously rejecting the administration's claims, this time as to U.S. citizens under military control not too far from the battlefield) might suggest what happens outside of Gitmo, perhaps even to aliens.

See this analysis over at Scotusblog, where Marty sometimes posts as well:

By refusing the Bush Administration’s plea to block any habeas claims against U.S. military jailers in Iraq, the Court has dropped a hint that, in the new global village, habeas will follow the American flag overseas — possibly, everywhere except an active battlefield.

As to aliens, the vote very well might be 5-4, but still, interesting. I hope to see a post here discussing the ruling, which should not be forgotten because of its more limited reach.

Contrast that largely undiscussed history with Chief Justice Robert's lengthy dissent discussing the unprecedented procedural rights Congress has granted this latest group of captured terrorists

Assuming the conclusion is a rookie mistake at best, "Bart."

Convicting someone before a trial is an example of same. Unless you are clairvoyant or have a touching faith in the pronouncements of your Leader, you have no way of knowing whether these detainees are "captured terrorists" or not.

Consider Mohammed Akhitar, held at Guantanamo Bay.

"He was not an enemy of the government, he was a friend of the government," a senior Afghan intelligence officer told McClatchy. Akhtiar was imprisoned at Guantanamo on the basis of false information that local anti-government insurgents fed to U.S. troops, he said.

An eight-month McClatchy investigation in 11 countries on three continents has found that Akhtiar was one of dozens of men — and, according to several officials, perhaps hundreds — whom the U.S. has wrongfully imprisoned in Afghanistan, Cuba and elsewhere on the basis of flimsy or fabricated evidence, old personal scores or bounty payments.

McClatchy interviewed 66 released detainees, more than a dozen local officials — primarily in Afghanistan — and U.S. officials with intimate knowledge of the detention program. The investigation also reviewed thousands of pages of U.S. military tribunal documents and other records.

This unprecedented compilation shows that most of the 66 were low-level Taliban grunts, innocent Afghan villagers or ordinary criminals. At least seven had been working for the U.S.-backed Afghan government and had no ties to militants, according to Afghan local officials. In effect, many of the detainees posed no danger to the United States or its allies.

--http://www.mcclatchydc.com/detainees/story/38773.html

But your faith in your Supreme Leader is really quite touching. If He says they are Captured Terrorists, then they must be. End of story.